What you need to know before writing or developing code in South Africa

Computer programs are currently eligible for copyright protection in South Africa, as per Section 2 of the South African Copyright Act.

A ‘computer program’ is defined by the Act as “a set of instructions fixed or stored in any manner and which, when used directly or indirectly in a computer, directs its operation to bring about a result”.

In plain language this means that if you write any source code or compile any object code from your source code – then that code is automatically afforded copyright protection merely by virtue of you writing or compiling your code, explained Dawid Prozesky of law firm Kisch IP.

“Unlike patents, trade marks or designs, there is no need for you to register for copyright protection,” he said.

“Although this sounds fairly straight forward, there are some major ‘potholes’ that you must beware of as a South African software developer.”

Working for a company

According to Prozesky, Section 21 of the Act states that as the ‘author’ of the code, you also become the owner of the code.

“If you are a co-author, then you become a joint-owner. However, where you write or compile your code during the course of your employment under a ‘contract of service’, your employer owns your code,” he said.

Prozesky explained that there are no hard and fast rules as to when you develop your code within the course of your employment. There are however some guiding principles that you could follow to answer this question, he said.

“Firstly, look at the scope of work done by your employer, is the code that you have developed within this scope? Secondly, what are your duties under your contract of service? Are you actually employed as a computer programmer?

“Finally, and almost most importantly, is there a close connection between the code that you developed and your employment?

“If the answer is yes to all the questions above, then according to the Act your employer most probably owns the copyright in your code and you can rest peacefully at night,” he said.

Are you actually the author?

In the event that you have established that you do not have an employment contract, or that your code was not developed within the course of your employment, the next question is whether you are actually the ‘author’ of your code, said Prozesky.

“An author in terms of computer programs is defined in the Act as ‘the person who exercised control over the making of the computer program’,” he said.

This especially important if you are a developer under a once-off contract (or are under a retainer), and are instructed to develop a specific application comprising some source code which you wrote, he said.

“If the other person or company does not actually direct in which direction the development should proceed or lacks the authority to terminate further development should it wish to do so, then you are the author, and thereby the owner of the copyright vesting in that code.

However it is important to note that for purposes of exercising control, the other person does not have to be a computer programmer to be able to control the writing of the code, he said.

Copyright assigned in writing

Assuming your code was not developed under an employment contract – or that code which you developed did not fall within the course of your employment – the final consideration is whether the copyright was assigned by writing, said Prozesky.

“The mere fact that someone has commissioned the development of software, and thereby the underlying code, and paid you for your service does not mean that they own the copyright in the code,” he said.

“If you exercised control over the development, and there is no written agreement signed by yourself stating that the copyright is assigned to the other party, then you remain the owner of the copyright in your code.”

This means that you maintain the exclusive right to do or authorise the reproduction, publishing, performing, broadcasting, transmission, adaptation, or copying of the code, he said.

“Note, however, that the person who has commissioned the code would still be in lawful possession of the code by virtue of your agreement and they would be entitled to copy the code for back-up purposes or for personal or private use.

“Furthermore, by virtue of the agreement, a non-exclusive license to use the code as intended is to be inferred,” he said.

Read: Developer salaries in Cape Town vs Johannesburg

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What you need to know before writing or developing code in South Africa